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Zappala taking hits for recent court losses

Thursday, March 08, 2001

By Marylynne Pitz, Post-Gazette Staff Writer

Losses and acquittals in four recent high-profile homicide cases have prompted questions about the priorities of Allegheny County District Attorney Stephen A. Zappala Jr.


This story was reported by Marylynne Pitz of the Pittsburgh Post-Gazette and Paul Martino of KDKA-TV News, the Post-Gazette's news partner. Martino's first report aired last night and a follow-up story will be in today's 6 p.m. newscast.


Is the young prosecutor so busy initiating social programs, establishing regional booking centers and assisting victims' advocates that convictions in the big cases elude his office?

Reporters from the Pittsburgh Post-Gazette and KDKA-TV spent two weeks trying to answer such questions, interviewing judges, defense lawyers, public defenders and law professors about the operation of Zappala's office.

Few of them would comment without the promise of anonymity.

That's because they have to deal with Zappala's office daily, and because his father, Stephen A. Zappala, soon will be chief justice of the Pennsylvania Supreme Court. Their clients' cases could end up before him.

They praise Zappala, 43, for obtaining $3 million in grants to hire 11 new prosecutors, buy computers, and renovate his small, dingy offices.

They admire his hands-on management style and his willingness to listen to new ideas.

But they ask why Zappala, who had never prosecuted a criminal before becoming district attorney, doesn't turn to some of the young hotshots in his office instead of giving all the big cases to Deputy District Attorney Edward Borkowski.

They say the reason may be that he relies too much on the advice of his chief investigator, former city homicide Detective Terry O'Leary.

"I'd match our office against anybody. I have some of the finest criminal trial lawyers. They're not pikers. These guys are pros," Zappala insisted during a two-hour interview last week.

The chief deputies

Borkowski, 50, was the lead prosecutor in three of the four recent big cases. He got convictions in none of them.

His prosecution of former Pittsburgh police Officer Jeffrey Cooperstein in the death of Deron Grimmitt Sr. ended in an acquittal in February 2000.

His prosecution of City Housing Authority police Officer John Charmo in the death of Jerry Jackson, 44, of Hazelwood, ended in a hung jury. He is to be retried.

And the case against Jeremy Witherell, 31, of Cranberry, in the 1992 death of his wife of four months, Michelle, 24, ended in acquittal in January.

Deputy District Attorney Daniel Fitzsimmons, an intense, detail-oriented veteran, prosecuted the fourth case, that of Steven M. Tielsch, 38, of Penn Hills. He was charged with homicide in the 1986 slaying of Canadian rabbinical school student Neal Rosenblum. That case also ended in a hung jury, and Tielsch will be retried.

In addition, Common Pleas Judge John Zottola threw out a homicide charge in January, ruling that Fitzsimmons missed the one-year deadline for trying Kelly Lewis, a 37-year-old Garfield man accused of shooting Terrence Jones, 22, a Hill District drug dealer.

Using a technical legal argument, Zappala's office persuaded Zottola to reconsider his decision. The judge ordered both sides to file briefs.

"That's extremely troublesome. If you can't count to 365, then something's wrong," said W. Christopher Conrad, who won 190 cases as chief homicide prosecutor under former District Attorney Robert E. Colville.

Before Colville won election to Common Pleas Court, county judges, in a secret vote, chose Zappala as his successor. Zappala took office in January 1998.

Zappala fired Conrad on his first day in office, and the two men fought bitterly in the 1999 election.

On paper, Zappala's track record is impressive -- he boasts an 83 percent conviction rate on homicides and a 96 percent conviction rate on all other cases, a record comparable to Colville's.

Raymond Novak, an Allegheny County Common Pleas Judge, defends Zappala.

"The commonwealth isn't supposed to achieve conviction in every case. The commonwealth is supposed to achieve justice," Novak said.

Nicer digs

Zappala proudly shows visitors around his renovated offices. He points out the domestic violence unit and talks about his friends in Harrisburg who helped him get public and private money to fund salaries and special units that focus on insurance fraud and auto theft.

His 200-member staff still works in cramped quarters, but now his 100 attorneys research the law from desktop computers. Blue carpet, fresh paint and clean white ceilings freshen the surroundings.

Zappala, halfway through a term that expires at the end of 2003, declines to grade his own performance.

"I think that's for the people to decide. I'm trying to do the right thing. I think that I've been fair. I think that I've been honest."

Some people wonder if Zappala's lack of trial experience has led him to take cases that many said could not be won.

They point to Jeremy Witherell's acquittal after experts interpreted the forensic evidence of Michelle Witherell's death in starkly different ways.

Witherell was charged seven years after his wife plunged to her death from a fourth floor apartment balcony in December of 1992.

"It was a tough case. I'd do it again," said Zappala.

Pressure mounted on Zappala to finally try the case as Michelle Witherell's parents, Evert and Cathy Mellema, spent $100,000 on a private investigator and forensic experts. They hired J. Alan Johnson, a lawyer who led Zappala's transition team.

On the advice of county detectives, Colville had declined to prosecute Witherell. But Zappala's detectives insisted that additional evidence would lead to a conviction.

Despite a dramatic closing argument, Borkowski lost.

Deciding whether to prosecute is ultimately Zappala's call. Analyzing facts, weighing the quality of evidence and assessing the credibility of witnesses are tricky, crucial steps.

"I'm responsible and I accept that responsibility. So if somebody wants to criticize me, criticize me," he said.

Mr. Indefatigable

Too many prominent cases, detractors say, are assigned to Borkowski, leaving him overburdened and exhausted.

"I have not run out of energy," Borkowski counters, adding that he is preparing the death-penalty prosecutions of mass-murder suspects Richard Baumhammers and Ronald Taylor and accused child killer Joseph Cornelius.

"Eddie's passionate about his work," Zappala said.

Borkowski is known to sleep in his office. Several jackets and suits hang from a coat rack near his desk.

Critics say Borkowski sometimes overtries his cases. Jurors hear so much information that they become weary and have trouble understanding the relevance of so much evidence.

Some veteran defense lawyers, none of whom would go on the record, say Borkowski sometimes doesn't know when to quit.

He calls so many witnesses that defense attorneys gain advantages during cross-examination.

Borkowski defends his approach. He points out that a common defense strategy is calling witnesses the prosecution listed but decided not to call. Then, defense lawyers imply that the prosecution tried to hide something.

"You never know how juries are thinking. I'd rather spend an extra three or four hours in trial rather than a jury get derailed on some non-issue."

As for the extra load of the Baumhammers and Taylor cases, Borkowski said, "It was clear from the beginning that the cases were going to ... turn on psychiatric issues. I'm the person in the office who has the most experience in dealing with experts in that area."

No regrets

Charmo, the former Pittsburgh Housing Authority officer, was accused of firing 13 bullets at Jerry Jackson inside the Armstrong Tunnels on April 6, 1995.

Colville decided not to take the case to trial after a coroner's jury exonerated Charmo.

Zappala reopened the investigation after the Jackson family, which ultimately won a $350,000 settlement in a wrongful-death lawsuit, gave Zappala a police videotape of the shooting scene that contradicted Charmo's version of what happened in the tunnel.

The tape, plus tire marks from Jackson's stolen car, contradicted Charmo's assertion that the car spun around in the tunnel and headed toward him.

"Why he gets involved and continues to be involved in that chase has always bothered me. As they get into the tunnels, it's clear that he's not telling the truth about what happened," Zappala said.

"You don't have to be a rocket scientist to know that that car didn't turn around. Maybe you've got to stop that guy. He does. But everything that happens beyond that is excessive and not justified."

Jurors rarely find police officers guilty of using excessive force, Zappala said.

"When I reviewed Charmo, both before and after, I concluded that that jury knew everything that happened that evening. I expected them to do the right thing," Zappala said.

Another retrial on the docket involved the death of Rosenblum, a Canadian who was killed in Squirrel Hill in April 1986.

Last month, 10 jurors agreed that the evidence was enough to convict Tielsch, a convicted drug dealer from Penn Hills. But two jurors doubted the credibility of two witnesses the prosecution presented.

"Some of these cases are very difficult. Charmo is not over, and neither is Tielsch," said Zappala, who intends to retry both men.

In Zappala's defense

As a former homicide prosecutor, Anthony J. Krastek is well-acquainted with the type of decisions Zappala has to make.

After 18 years in the district attorney's office, Krastek left in 1997 to become a senior deputy state attorney general, with a $20,000 pay raise.

He remembers the cases in which witnesses refused to testify about gang-related shootings.

Zappala's prosecutors, Krastek said, should be complimented for their courage.

"Prosecutors need to take difficult cases as long as it's a good-faith prosecution."

As for Borkowski, Krastek said, "Putting cases in his hands is never a mistake. I'm sure he feels the pressure."

Borkowski has distinguished himself because no one has ever tried such a long succession of headline cases.

"No one in the history of the world has tried cases back-to-back like that," Krastek said. "It's not for me to second guess that office."

Conviction rates, Colville said, are not the ultimate measure of a prosecutor's effectiveness.

"That's not the essence of what you are. We were in the 90th percentile with homicides, too. That's a double-edged sword. If you're highly selective, that means you let murderers walk the streets," he said.

Zappala said he welcomes criticism.

"What we're doing is much bigger than any particular individual. If you can't take criticism, constructive or otherwise, you shouldn't be in public service," Zappala said.

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